Full Judgment
N. Dhinakar, J.
1. This revision is against the orders of the Judicial First Class Magistrate, Thaliparamba, refusing to drop the proceedings instituted against the petitioner for an offence under Section 138 of the Negotiable Instruments Act, 1881.
2. The petitioner, before the trial court, took an objection that a notice contemplated under Section 138 was not served upon him and prayed that the proceedings against him be dropped. The learned Magistrate, on consideration of the materials placed before him, took the view that from the endorsements made on the registered notice the petitioner was only evading service of notice which was actually sent by the complainant. The learned Magistrate held as follows :
' From the endorsement on the registered notice made by the postman and from the postal seals affixed on the letter it is seen that the postal authorities were trying to deliver the notice to the addressee from March 5, 1991, till March 13, 1991, and the addressee was out of station during five days.'
3. It is not in dispute that the complainant/respondent sent a notice, but the only dispute is that the notice was not served upon the petitioner. Counsel for the petitioner submits that, inasmuch as no notice was served upon him, the proceedings under Section 138 of the Negotiable Instruments Act have to be quashed. A similar contention was considered by a learned judge of this court in Madhu v. Omega Pipes Ltd. [1994] 1 KLT 441; [1996] 85 Comp Cas 263 The learned judge, after considering the law on the subject, took the view that the proviso to section 138 of the Negotiable Instruments Act affords clear indication that 'giving notice' in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer at his correct address. If receipt or even tender of notice is indispensable for giving the notice in the context envisaged in Clause (b), an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrongdoer to take advantage of his tactics. Hence, the realistic interpretation for the expression 'giving notice' in the present context is that, if the payee has despatched notice to the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice. It is not in dispute that the address to which the notice was sent is the correct address. Learned counsel relying upon the judgment in Sosamma v. Rajendran [1993] 1 KLT 629 ; [1994] 80 Comp Cas 503 would urge that the Magistrate ought not to have given a finding even at the initial stage on the question that the petitioner was evading notice. It is no doubt true that since the general burden to prove the prosecution case, rests with the complainant, it is necessary for the complainant to prove the facts constituting the sending of notice and its receipt. The tender of the notice by the postal peon at the address of the accused has to be proved and the same could not be actually served due to the culpable default or deliberate evasion of the accused, then the same would constitute 'receipt' of notice. The burden to establish those facts rests with the complainant. In the above said judgment, the learned single judge took the view that it is open to the complainant, where the notice was returned 'unclaimed', to prove the said elements in support of the prosecution case. Sending of notice and the return of the same with an endorsement by the postal authorities is a matter for evidence and the petitioner cannot at this stage say that no notice was sent by the complainant/respondent. The respondent certainly must have a right to prove his case and the petitioner cannot put a spoke in the wheels of justice even at the threshold by filing a petition to have the whole proceedings quashed on the allegation that no notice was sent at all to him. Whether any notice was sent by the complainat/respondent and whether the petitioner successfully evaded it being questions of fact, I am of the view that the complainant/respondent must be given an opportunity to prove the same before the trail court. This court exercising the powers under Section 482 of the Criminal Procedure Code will not interfere and give findings on questions of fact. This revision petition deserves to be dismissed and, accordingly, it is dismissed.